NSW Bar Association push to reintroduce juries in civil trials in NSW

For more than a decade, juries in non-criminal trials have been a rare sight in NSW and around the country. Now the Baird government is being urged to buck the national trend and reintroduce them.

The NSW Bar Association mounted a push on Tuesday to restore the right to jury trials in civil cases in the Supreme and District Courts, reversing changes introduced by the Carr Labor government in 2001 which were aimed at reducing court costs and time.

Supporters say reintroducing juries to resolve civil disputes could in fact speed up the outcome in cases from months – or even years – to days because jury verdicts are faster than a judge preparing a lengthy written judgment.

It may also reduce the number of appeals because a jury’s verdict is not overturned lightly by the courts.

Noel Hutley, SC, the president of the Bar Association, said the changes in 2001 had resulted in civil juries falling into “complete disuse” in the state, apart from in defamation cases which were exempt from the new regime.

He said there were “compelling reasons” for reinstating juries in civil trials, including that it would ensure “decisions in the courts reflect community standards and that the legal system is not dominated by judges and legal practitioners”.

He added it was “by no means obvious that time is saved by removing a right to jury” and “the usual jury trial is not substantially longer or more expensive than a trial by judge alone”.

Four-member juries – as opposed to juries of 12 used in criminal trials – are still used regularly in defamation cases in NSW.

Under the existing laws, civil cases other than defamation suits in the Supreme and District Courts are to be tried without a jury unless one of the parties requests a jury and the court is persuaded “that the interests of justice require a trial by jury”.

That provision has been interpreted narrowly. The NSW Court of Appeal said in a 2007 case involving a footballer injured during a match that “great caution” was required before a judge could be satisfied that “reference to ‘community’ or ‘moral, ethical or general social values'” was relevant to a case and the interests of justice therefore required a jury trial.

Juries in civil trials have been abolished in South Australia and the Australian Capital Territory and are rarely used in other states. Victoria is the exception.

A spokeswoman for NSW Attorney-General Gabrielle Upton said the government “looks forward to receiving further detail from the NSW Bar Association on its proposal”.

But the spokeswoman added that “at this time there are no plans to reinstate the right to juries in civil claims beyond defamation actions”.